Positions taken by the president a few years ago

George Will was typically great tonight, talking about what he calls the “indignation sweepstakes.”

“Tim Cook, CEO of Apple thinks Indiana is a horrible place. He opened marketing and retailing operations in Saudi Arabia two months before a man was sentenced to 450 lashes for being gay. The selective indignation is itself wonderful.

“There are obviously two important principles at stake here,” Will continued. “One is, the government should rarely, and only with extreme difficulty, compel people to take actions contrary to their consciences. The other is that when you open your doors to commerce you open them to everybody.

That’s a simple thing. It goes back to the 1964 Civil Rights Act, the public accommodations section, which is surely a great moment in American history. You can work this out, but the indignation isn’t helping.”

In today’s NYTimes and along similar lines, Ross Douthat has 7 questions for Indiana’s critics:

(T)he only remaining question in the same-sex marriage “debate” was what kind of space, if any, an ascendant cultural liberalism would leave to Americans with traditional views on what constitutes a marriage; that the correlation of forces (corporate now as well as cultural and legal) was such that the choice of exactly how far to push and how much pluralism to permit would be almost entirely in the hands of liberals and supporters of same-sex marriage…

(O)ne thing that might be helpful for everyone involved in these arguments is to look ahead and try to clarify, even a little bit, exactly how the landscape of debate is likely to evolve. One of the difficulties in this discussion, from a conservative perspective, is that the definition of “common sense” and “compromise” on these issues has shifted so rapidly in such a short time: Positions taken by, say, the president of the United States and most Democratic politicians a few short years ago are now deemed the purest atavism, the definition of bigotry gets more and more elastic, and developments that social liberals would have described as right-wing scare stories in 2002 or so are now treated as just the most natural extensions of basic American principles. (Rod Dreher calls this the “law of merited impossibility,” in which various follow-on effects of same-sex marriage are dismissed as impossible until they happen, at which point it’s explained that of course they were absolutely necessary.) Of course all of this is happening because underlying attitudes have changed rapidly, and what’s politically and socially possible is changing with them; that’s all understandable. But the pace involved is unusual, and its rapidity makes it very easy to imagine that scenarios that aren’t officially on the table right now will become plausible very, very soon.

Let’s just take the issue at stake in the Indiana/religious liberty debate. Beneath all of the to-and-fro-ing over what the law actually says, whether it differs from other statutes like it, and so on, lies a basic reality that both sides can concede. The support for new state RFRAs from religious conservative has been occasioned by a handful of cases in which people in the wedding industry (photographers, florists, etc.) have been sued or fined or otherwise sanctioned for trying to decline to provide their services for a same-sex ceremony. The current conservative position (though one that the Republican Party’s business wing is eager to abjure) is that a religious exemption of some sort is a reasonable compromise between gay rights and freedom of religion/freedom of association; the current liberal position (with a few exceptions) is that granting private businesses the right to decline involvement in same-sex nuptials is the moral and legal equivalent of allowing businesses to turn away African-Americans from lunch counters.

As I’ve said before, I don’t think the issues in the wedding industry deserve the label “persecution” that some religious conservatives have slapped on them, and I don’t think the view taken by these florists/bakers/photographers is necessarily mandated by orthodox Christian belief. But it is my very strong impression that if a religious conservative (or anyone on the right) had said, back in 2004 or even into President Obama’s first term, that they accepted that marriage should be redefined nationwide to include same-sex couples, that they further accepted that this would happen swiftly through the courts rather than state-by-state and legislatively, and that all they asked of liberals was that this redefinition proceed in a way that allowed people like Barronelle Stutzman some wiggle room about whether their businesses or facilities had to be involved in the wedding ceremonies themselves — with the mechanism for opting out being something like the (then-still-bipartisan) RFRA model – this would have been treated as a very reasonable compromise proposal by a lot of people on the center-left, gay as well as straight. I cannot prove this absolutely, and I concede that there are lots of people on the left who wouldn’t have liked the deal. But the world of liberal opinion is a pretty familiar one to me, the world of the past isn’t that far past, and I think my assessment is basically correct.

Today, though, as I said above, I think the consensus center-left position has basically shifted toward the argument offered by Garrett Epps for The Atlantic: It doesn’t matter if Stutzman or any other wedding vendor is a nice person with sincere religious beliefs, and it doesn’t matter if she or they would provide her services to gay clients in any other context; her religious anxiety about decorating a wedding chapel for a same-sex couple is no different from the objection to integration of a Southern store-owner whose preacher taught him the races should be separate, and needs to be dismissed with extreme prejudice lest anti-gay discrimination flourish and spread.

And whether you find this view, this analogy, persuasive or you don’t, it has a lot of possible further implications. Because in the annals of American history, both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary. So if our current situation with same-sex marriage and religious conservatives really is analogous, there is no obvious reason why we’ve reached any kind stopping point once the florists and bakers have been appropriately fined or closed down.

Hence the following seven questions about future steps, which I’ll pose specifically to Epps and generally to the Indiana law’s many liberal critics. Some are rooted in real-life examples and possibilities; some are much more (I think) unlikely. But I’m still quite interested in whether people would support them if they were to become plausible options a little ways down the road…

[He lists 7 questions concerning how to treat dissenters from gay marriage.]

No doubt others could add more questions to the list, but that seems like decent range to me. Again, I’m genuinely interested in the answers, and not just for the sake of putting people on the record or playing some kind of “follow the logic” game. At the very least, I think liberals would benefit from recognizing that the current thinking of religious conservatives, in the RFRA debate and elsewhere, is shaped not only by these kind of specific fears but by a near-total uncertainty about what happens after this, and after that, and so on. And given how the ground has shifted recently, I think there would be real benefits for both sides to having more people on the left and center-left taking explicit positions on where we might and ought to go from here.

Rich Lowry argues that “The anti-Indiana backlash is a perfect storm of hysteria and legal ignorance, supercharged by the particularly censorious self-righteousness of the Left.”  There are reasons to support traditional marriage that have nothing to do with animus towards gays and lesbians.  Is there really no room in polite society for people who don’t want to participate in ceremonies that violate their conscience?  We can’t allow time for opinions to maybe change, we have to ruin dissenters?  Have to track down every soldier in every cave on every island?

All the Indiana law says is that the state can’t substantially burden a person’s exercise of religion, unless there is a compelling governmental interest at stake and it is pursued by the least restrictive means. The law doesn’t mandate any particular outcome; it simply provides a test for the courts in those rare instances when a person’s exercise of religion clashes with a law.

Nineteen other states have similar protections, and they are all modeled on a federal version of the law that passed Congress with near unanimity in 1993 (Indiana’s law is arguably a little more robust than the federal version, because it also applies to private suits). If these Religious Freedom Restoration Acts were the enablers of discrimination they are portrayed as, much of the country would already have sunk into a dystopian pit of hatred.

Legal historians a century from now may be mystified by how a measure that was uncontroversial for so long suddenly became a mark of shame. They will find their answer in the Left’s drive to crush any dissent from its cultural agenda, especially on gay marriage.

The religious-freedom laws once were associated with minorities that progressives could embrace or tolerate — Native Americans who smoke peyote as part of religious ceremonies, Amish who drive their buggies on the roads, and the like. That was fine. It is the specter of Christian small-business people — say, a baker or a florist — using the laws to protect themselves from punishment for opting out of gay-wedding ceremonies that drives progressives mad.

Why? It’s a large, diverse country, with many people of differing faiths and different points of view. More specifically, the country has an enormous wedding industry not known for its hostility to gays. The burgeoning institution of gay marriage will surely survive the occasional florist who doesn’t want to provide flowers for a same-sex wedding for religious reasons.

As a practical matter, such a dissenting florist doesn’t make a difference; the affected couple might be offended but can take its business elsewhere. But for the Left, it’s the principle of the thing. For all its talk of diversity, it demands unanimity on this question — individual conscience be damned. So it isn’t bothered when religious wedding vendors are sued or harassed under anti-discrimination laws for their nonparticipation in ceremonies they morally oppose.

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